54»
His filence
leaves him an
option of re-
j eft io n j
but any aft
indicative of
hisacceptance
binds' him to
the execution
of the office.
Having rejected
the appointment,
after the tef-
tator’s de-
ceafe, he may
ftill accept of
it, unlefs the
magiftrate
appoint an
executor in
the interim.
W I L L S " . B o o k LIT.
rejedtion were allowed of, either in his abfence or after his deceafe,.
he would neceffarily be deceived.
I f a perfon appoint another his executor, and that other remain«
filent, without giving any'indication of his acceptance or refufal, he
is in that cafe at liberty, after the death of the teftator, to accept or
refufe the appointment, as may be molt agreeable to him. But if a
perfon, under fuch eircumftances, fhould, immediately after the"
death of the teftator, difpofe of any part of the effedfs by foie, then,
as an act of this kind is a'clear indication of his acceptance',, the exe-
cutorfhip becomes obligatory on him. T h e foie, moreover, is valid
in this inffance, notwithstanding the executor may not have confidered
himfelf as fuch at that time ; for his'executbrftlip (like, inheritance,,
bequeft being a fort of fucceffion as well as inheritance,) does not
dépend on his knowledge; and, as being^an executor,,a foie tranfodled by'
him is valid..
I f a perfon appoint another his executor, and the perfon fo ap--
pointed remain filent until the teftator’ s deceafe, and then réjedt the office,
and afterwards declare his acceptance o f it, fuch acceptance is-
valid, unlefs the Kdzee, during the interim, fhould have fet him-
afide, and appointed another, in confequence of his firft declaration ; •
becaufe the refufal does not immediately annul the appointment, that
being injurious to the deceafed"; and although the continuance of it
be prejudicial and troublefome to the executor, ftill he 1 has the merit
of i t , . which is an equivalent for the' difadvantage,— whereas the injury
to the.deceafed hasmothing to counterbalance it. T h e executor-
Ihip therefore endures in this cafe; If, however, the Kâzee fet him
afidfe, his decree to that effedt is valid, as he pofl'effes the power of
removing an inconvenience*, to which executors are frequently fub-
jedted, and which may render the continuance of the office injurious
tp them. T h e Kâzee; therefore, to remedy this, may difcharge the
executor
CTitap. V IL , W I L L S . - 54i;
executor from his office, arid appoint another in his room, to adt with'
the eftate,- thereby preventing an injury Both to the executor and the
deceafedl If, moreover, the executor, after being thus difmifled by
the Kdzee, declare his willingnefs to undertake the executorftiip', fuch
declaration-is not admitted or attended to, as he here aflents after
his appointment having been altogether annulled by the order of the
Kdzee.
A p e r s o n may appoint a flave, a reprobate*, or an infidel, to be- Where a
his executor; but it is incumbent on the Kdzee to annul fuch ap- probate, or an
pointment, and nominate another perfon, becaufe o f the difadvantages
which would attend the confirmation o f it in either of thofe # , inftances; tfthrea tem maugiltfor,
a flave could not adt but by the power of his mafter; a reprobate nominate a
may be fufpedted of fraud"; and it- is riot fit fuch a truft fhould be ftitnm. U
Committed tp an infidel, as the enmity which every infidel may be fup-
pofed to entertain towards a Mujfulmdn on the fcore o f religion will
occafion a difregard to his intereft. The difiolution of fuch appointments
is therefox'e incumbent on the Kdzee, notwithstanding their original
validity.-'
If a perfon appoint his own flave his executor, any of the h e ir s'The appoint-
being arrived at the age of maturity, it is not valid; becaufe fuch heirs Kftator’s'*'6
may prevent the flave from the execution of his office by felling their
property in him to another, and thereby rendering him incapable of the heirs
of adting but by the confent of the purchafer. If, on the contrary, to^amrity;
the heirs be all infants, the appointment is in that cafe valid, ac- hiwnotother-
cording’to Haneefa. The two difciples maintain that it is not valid;-
(arid fuch is 'what analogy would fuggeft;) becaufe flavery is-
incompatible with the exercife of power; and alfo becaufe, in this
particular inftance, it would follow that the property was mafter over
the proprietor, which is contrary to l a w . T h e argument oiHaneefa-
Arab. Fàfik, ( T h e term has been repeatedly defined.!